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HQ 950483


January 9, 1992

CLA-2 CO:R:C:F 950483 LPF

CATEGORY: CLASSIFICATION

TARIFF NO.: 2106.90.6087

Ms. Clara Du Bois, President
Multitrade S.A.
Apartado 1273
4050 Alajuela
Costa Rica

RE: Herb Infusions in 2106, HTSUSA; Food Preparation not elsewhere specified or included

Dear Ms. Du Bois:

This is in response to your letter of September 17, 1991, submitted on behalf of Multitrade S.A. of Costa Rica. Your inquiry requests the proper classification of herb infusions under the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). You did not submit a sample with your request for a binding ruling.

FACTS:

The product, from Costa Rica, is natural (non drug) herb infusions, packed in tea bags for human consumption. The infusions are described as mixtures of assorted herbs, roots and spices, such as linden (tilia) flowers, chamomile flowers, cinnamon, lemon grass, peppermint, orange peel, alfalfa, catnip, cocolmeca and boldo, among others.

ISSUE:

Whether the herb infusions are classifiable in heading 0902 as tea; or rather in heading 2106 as food preparations not elsewhere specified or included.

LAW AND ANALYSIS:

The General Rules of Interpretation (GRI's) taken in their appropriate order provide a framework for classification of merchandise under the HTSUSA. The majority of imported goods are classified by application of GRI 1, that is, according to the terms of the headings of the tariff schedule and any relative section or chapter notes. In the event that the goods cannot be classified solely on the basis of GRI 1, and if the headings and legal notes do not otherwise require, the remaining GRI's may then be applied. The Explanatory Notes (EN's) to the Harmonized Commodity Description and Coding System, which represent the official interpretation of the tariff at the international level, facilitate classification under the HTSUSA by offering guidance in understanding the scope of the headings and GRI's.

The product at issue is classifiable by application of GRI 1, that is, according to the terms of the headings of the tariff schedule. Heading 0902 provides for tea. However, the EN's to 0902 explain that:

The heading...excludes products not derived from the shrubs of the botanical genus Thea but sometimes called "teas", e.g.:...(b) Products for making herbal infusions or herbal "teas" (other than medicinal "teas"). These are classified, for example, in heading 08.13, 09.09, 12.11 or 21.06.

The product is not classifiable in heading 0813 as dried fruit; mixtures of nuts or dried fruits, nor is it classifiable in heading 0909 as seeds of anise, badian, fennel, coriander, cumin, caraway or juniper. Although heading 1211 provides for plants and parts of plants, the EN's explain that the heading excludes, inter alia, "products consisting of plants or parts of plants...of different species...or...of a single or of different species mixed with other substances, such as one or more plant extracts (heading 21.06)." Thus, it appears the herb infusions must be classified elsewhere.

Heading 2106 provides for food preparations not elsewhere specified or included. The EN's to 2106 explain that:

The heading includes,...[p]roducts consisting of a mixture of plants or parts of plants (including seeds or fruits) of different species or consisting of plants or parts of plants (including seeds or fruits) of a single or of different species mixed with other substances such as one or more plant extracts, which are not consumed as such, but which are of a kind used for making herbal infusions or herbal "teas",....

The product consists of a combination of different plant species and parts of plants mixed with other substances, such as cinnamon and orange peel, in order to make herbal infusions. Thus, the product is classifiable in heading 2106. The applicable subheading is 2106.90.6087.

In addition, note that Costa Rica is a designated beneficiary developing country (BDC) for purposes of the Generalized System of Preferences (GSP). Thus, if the merchandise is the growth, product or manufacture of Costa Rica, and is then imported directly from Costa Rica to the U.S., it may meet the requirements under General Note 3(c)(ii), HTSUSA, and be eligible for duty free treatment under the GSP. However, if the product is composed of materials imported from other countries it must meet the two-step substantial transformation test whereby the cost or value of the materials produced in the BDC plus the direct costs of processing operations performed in the BDC must equal at least 35 percent of the appraised value of the product upon entering the customs territory of the U.S.

HOLDING:

The herb infusions are classifiable in subheading 2106.90.6087, as "[F]ood preparations not elsewhere specified or included: Other: Other: Other: Other: Other, Herbal teas and herbal infusions comprising mixed herbs." The general column one rate of duty is 10 percent ad valorem. However, if the herb infusions qualify for tariff preferences under the GSP, the special column one rate of duty provides that the product is duty free.

Sincerely,

John Durant, Director
Commercial Rulings Division

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